Criminal Justice Reform Legislation Signed, Sent to Governor

DOVER – Thousands of Delawareans currently sit behind bars paying their debts to society or in pre-trial detention. Many are caught in the revolving door of recidivism, while others wonder how and if they will ever get the chance to rebuild their lives. These stories are all too common, and paint a picture of a criminal justice system that requires bold, reformative action.

This year, however, the Delaware General Assembly tackled mass incarceration in the First State head-on, passing a series of landmark bills that work to break the cycle of recidivism and change the lives of thousands of incarcerated and formerly incarcerated Delawareans.

Part of the most ambitious criminal justice package Delaware has seen in a decade, lawmakers sent 11 bills to Governor John Carney’s desk to become law this legislative session, passing seven on June 30, the last day of the first half of the 150th General Assembly.

These bills will break down barriers to employment, reduce the ability to stack charges, re-focus youth justice on rehabilitation and overhaul significant portions of the criminal justice code. Measures will ensure that our judges have discretion to make the best sentencing decisions for each individual rather than applying a one-size-fits-all standard to all offenders.

In total, of the 17 bills that have been filed, 11 have passed the General Assembly and two have been signed into law.

“Our criminal justice proposals laid out a bold vision of a better future for Delaware, and this session we have made longstanding reforms,” said House Majority Leader Valerie Longhurst, who is sponsoring several of the initiatives. “We understand that whenever someone comes in contact with the criminal justice system, it leaves a lasting impression and can change their lives forever.

“We have to make sure the system holds individuals accountable, without ruining their lives in the process; it is simply the right thing to do. Criminal justice is not about vengeance and retribution; it is about rehabilitation and restoration. We’ve take substantial steps forward this year, and we are only getting started.”

“The groundswell of support that we are seeing for criminal justice reform all around the country is a clear indication that we are on the brink of something big,” said Senate Majority Leader Nicole Poore, D-New Castle. “The bills we passed this year to modernize our criminal code and restore fairness in sentencing put us right at the front of that effort and that’s something to be proud of. It’s what our constituents demand and it will make a difference for thousands of Delawareans. I’m thankful to my colleagues in the House and Senate for working so hard on this package of bills this year and for moving us forward together.”

Delaware lawmakers sent seven bills to Governor Carney’s desk for his signature on Sunday including:

  • Senate Bill 43, sponsored by Sen. Jack Walsh and Rep. Ed Osienski, the bill would modify the impact of criminal history on an applicant’s eligibility for licensure by the Board of Electrical Examiners.
  • Senate Bill 44, sponsored by Sen. Laura Sturgeon and Rep. Melissa Minor-Brown, would make clear that possession or consumption of alcohol by an individual under 21 years of age is a civil offense. It also would prohibit including information concerning a civil violation of the underage possession or consumption law on an individual’s certified criminal record.
  • House Bill 7, sponsored by Rep. Minor-Brown and Sen. Walsh, would modify the impact of criminal history on an applicant’s eligibility for licensure by the Board of Massage and Bodywork.
  • House Bill 77, sponsored by Rep. Stephanie T. Bolden and Sen. David Sokola, would simplify the burglary code to eliminate duplication by combining the burglary and home invasion sections and to align minimum mandatory sentences.
  • House Bill 78, sponsored by Rep. Bolden and Sen. Sokola, would simplify the robbery code to eliminate duplication. It combines the robbery and carjacking sections while preserving enhancements recognizing the seriousness of carjacking.
  • Senate Bill 45, sponsored by Sen. Trey Paradee and Rep. Franklin Cooke, would make the possession, use, or consumption of a personal use quantity of marijuana a civil violation for juveniles.
  • Senate Bill 41, sponsored by Sen. Darius Brown and Rep. Gerald Brady, would establish that the age of offense, not the age of arrest, determines jurisdiction for a young person facing charges.

“This criminal justice reform is a strong start for Delaware, with monumental legislation clearing the General Assembly this year. These measures have had bi-partisan support and brought all the stakeholders to the table to make this a reality,” said Dubard McGriff, ACLU of Delaware Organizer for the Campaign for Smart Justice.

“As someone who has been impacted by the system, it is surreal to see these reforms in motion. The Smart Justice Campaign has been working tirelessly since 2018 to drive Delaware’s mass incarceration down and we’ve been successful at getting the community to be advocates and leaders on sharing the impact criminal justice reform has on black and brown communities in our state. It is powerful work I am proud to be a part of.”

Two additional bills cleared the General Assembly in the last week and await the Governor’s signature:

  • House Bill 124, sponsored by Rep. Osienski and Sen. Walsh, would help those who have made a mistake in their past obtain a license as a plumber or HVAC technician. It would modify the impact an applicant's criminal history would have on their eligibility to obtain a license. It gives the licensing board discretion to waive some of those convictions, making them eligible to pursue their new job.
  • Senate Bill 47, sponsored by Sen. Elizabeth Lockman and Rep. Sean Lynn, would simplify Delaware’s drug code with a goal of providing more fairness in its application. It would remove geographic-based enhancements that disproportionately impact those living in urban areas as opposed to suburban and rural areas. The bill reduces the number of weight tiers from five to three with adjustments to accompanying sentences while retaining higher felony levels for weights that indicate drug dealing.

“Delaware has accomplished remarkable reform in a few short months,” said Delaware Attorney General Kathy Jennings. “From second chances for many whose criminal records have been a barrier to employment and housing, to greater discretion for judges to craft sentences that fit the facts and circumstances of each individual case, to the restoration of balance to our drug code and beyond, Delawareans are getting a criminal justice system that reflects our values and that rejects one-size-fits-all solutions.

“We owe that progress to so many people — legislators, advocates, prosecutors, and ordinary citizens — and we will continue to fight for reform that keeps us safe, that makes the criminal justice system fair and equal for everyone, and that uphold justice in all its forms.”

So far, Governor Carney has signed two pieces of legislation from the package into law. They include:

  • House Bill 5, sponsored by Rep. Longhurst and Sen. Poore, reforms concurrent and consecutive sentencing by providing sentencing judges with the discretion to sentence prison time concurrently when appropriate. Balancing public safety, it leaves the most egregious crimes in the code as mandatory consecutive sentences.
  • Senate Substitute 1 for Senate Bill 37, sponsored by Sen. Brown and Rep. Lynn, would expand the availability of expungement for adult criminal records of arrest and conviction.

“These bills continue to restore balance to the scales of justice, and create a fairer criminal justice system for all. Every day our clients experience a system riddled with inequities that is harsher on the indigent than those with money. These bills are another step to fixing a system that’s been broken for decades,” said Lisa Minutola, Chief of Legal Services for the Office of Defense Services. “True justice is not one-size-fits-all or a revolving door. We need a system that recognizes the complexities of each case and recognizes that people can, and do change. We’re on the right path.”

Additional criminal justice bills are working through the General Assembly. The 150th General Assembly recessed after June 30, but reconvene in January 2020. Bills that have not been passed by the end of session this year will still be active for consideration in 2020.

  • House Bill 4, the James Johnson Sentencing Reform Act, named after the former state representative who dedicated his legislative career to criminal justice reform also cleared committee this June. (Released from House committee) HB 4 would:
    • Remove all Title 16 drug offenses from being designated as “violent felonies,” so they would no longer be subject to the enhanced charging and sentencing provisions as violent crimes.
    • Expand the ability to modify sentences for conditional release based on the rehabilitation of the offender, serious medical illness or infirmity, or prison overcrowding.
    • Establish the Sentencing Accountability and Guidelines Commission, which would replace SENTAC as it is currently constituted.
  • House Substitute 1 for House Bill 10, sponsored by Rep. Nnamdi Chukwuocha and Sen. Lockman, would prohibit the prosecution of any child under the age of 12 and bar transferring a juvenile prosecution to the Superior Court unless the child is aged 16 or older, with the exception of first and second degree murder and rape. (Released from House Committee)
  • House Substitute 1 for House Bill 75, sponsored by Rep. Bolden and Sen. Lockman, would clarify that any child under 18 years old who is adjudicated in Superior Court will serve the initial portion of their incarceration until age 18 in the custody of the Department of Services for Children, Youth and their Families. (Released from House Committee)
  • House Bill 76, sponsored by Rep. Debra Heffernan and Sen. Bryan Townsend, would require the Department of Services for Children, Youth and Their Families to have exclusive jurisdiction over all aspects of a child’s care, custody and control when a child is convicted of a Superior Court offense. (Released from House Committee)
  • House Bill 8, sponsored by Rep. Sean Matthews and Sen. Lockman, would establish the Ex-Offender Employment Opportunity Tax Credit that offers a tax credit to employers for hiring qualified ex-offenders in an amount equal to 10% of that individual’s wages, with a maximum credit of $1,500. (Released from House Committee)
  • Senate Bill 39, sponsored by Sen. Brown and Rep. Krista Griffith, would prohibit a court from suspending a driver’s license for nonpayment of a fine, fee, cost, assessment, or restitution. It also would prohibit a court from imposing an additional fee on a defendant for payments that are made at designated periodic intervals or late, or when probation is ordered to supervise a defendant’s payment. (In Senate Committee)

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